Weissman v. C.I.A.
| Decision Date | 06 May 1977 |
| Docket Number | No. 76-1566,76-1566 |
| Citation | 565 F.2d 692,184 U.S.App.D.C. 117 |
| Parties | , 2 Media L. Rep. 1276 Gary A. WEISSMAN, Plaintiff-Appellant, v. CENTRAL INTELLIGENCE AGENCY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 75-1583).
Mark H. Lynch, Washington, D.C., with whom Larry P. Ellsworth and Allan B. Morrison, Washington, D.C., were on the brief for appellant.
Frank A. Rosenfeld, Atty., Dept. of Justice, Pittsburgh, Pa., of the bar of the Supreme Court of Pennsylvania, pro hac vice, by special leave of court, with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellees.
Michael H. Stein, Atty., Department of Justice, Washington, D.C., also entered an appearance for appellees.
Before McGOWAN and TAMM, Circuit Judges and GESELL, * United States District Judge for the United States District Court for the District of Columbia.
Opinion for the Court filed by District Judge GESELL.
This is an appeal arising under the Freedom of Information Act, 5 U.S.C. §§ 552 et seq. Appellant Weissman challenges an order of the District Court granting summary judgment in favor of the Central Intelligence Agency which refused to turn over certain documentary material to Weissman claiming that disclosure was not required because of three exemptions found in § 552(b) of the Act. The appeal focuses on the scope of these statutory exemptions as well as upon the procedures by which the availability of such FOIA exemptions is to be determined at the trial court level. 1
In February, 1975, Weissman wrote the CIA expressing his alarm at news stories suggesting that investigative activities of the Agency had been directed against left-of-center political activists. Stating that he had been active in political reform during the 1960's, he requested "to see all files completed on me by the CIA." The CIA advised that "Unbeknown to Mr. Weissman he was considered for employment by this agency in the 1950's . . . ." A substantial amount of documentary material was thereafter released to Weissman. These papers disclosed that from 1958 to 1963 Weissman, without his knowledge or permission, was under a periodic but continuing investigation by the Agency for potential use as a witting agent to provide information about foreign activities in which he might participate, such as the VII Youth Festival held in Vienna in 1959. Detailed background checks were made, and provisional followed by final covert security approvals were granted. Although deemed qualified for undercover assignment, Weissman was never approached and he did not at any time seek employment with the Agency.
All or part of over 50 documents developed by the CIA during its investigation were withheld. Since much of this material gathered by the Agency was classified as confidential, contained information concerning agents' names, sources and procedures, or was considered part of an investigation compiled for law-enforcement purposes, the Agency in particularizing each document withheld claimed exemption under 5 U.S.C. § 552(b)(1), (3) or (7). After Weissman brought suit to compel disclosure, the Agency moved for summary judgment. Upon hearing the motion and considering the supporting affidavits, the District Court accepted the Agency's position. This appeal followed.
When Congress enacted the FOIA it recognized the obvious difficulties that would inevitably arise when disclosure was sought of documents touching on sensitive matters affecting law enforcement and national security. The Act, however, gave only general guidance in seeking to protect material of this type, and it has been left to the courts to develop standards and procedures in the light of experience with this delicate area.
The exemptions claimed in this instance, as set forth at 5 U.S.C. § 552(b), remove from the disclosure obligations of the FOIA matters that are
(b)(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
(b)(3) Specifically exempted from disclosure by statute;
(b)(7) investigatory records compiled for law enforcement purposes . . . (subject to some conditions).
In this instance, the Agency placed principal reliance on exemption (b)(3). 2 The Central Intelligence Act of 1949 provided at 50 U.S.C. § 403g that "the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency" shall be protected from disclosure. In addition, Section 403(d)(3) of this Title provides, "That the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." The directive that the CIA protect its sources is especially broad, protecting not only the name of the source but, to the extent the Agency considers reasonable to protect the source, the nature and type of information supplied. While appellant vigorously asserts that § 403(d)(3) is not a statute within the exemption, the legislative history clearly demonstrates 3 that both § 403(d)(3) and § 403g are precisely the type of statutes comprehended by exemption (b)(3). Appellant's contention, moreover, has now been rejected. Phillippi v. Central Intelligence Agency, 178 U.S.App.D.C. 243, 546 F.2d 1009 (1976), n. 14.
The Agency also withheld material pursuant to exemption (b)(7) which shields from disclosure certain records compiled for law-enforcement purposes. This claim to exemption is misplaced, as appellant strenuously contends.
To be sure, it appears from the sparse record available that the CIA investigation of Weissman, an American citizen, may well have been a genuine attempt to determine whether he was a safe candidate for recruitment by the Agency. Accepting this as a fact, however, it is clear that the CIA nonetheless conducted an intermittent but extensive investigation over a five-year period of an American citizen living at home, without his knowledge. It cannot be contended that this activity was for law-enforcement purposes.
The National Security Act of 1947, which created the CIA 4 and empowered it to correlate and evaluate intelligence relating to the national security, specifically provided that the "Agency shall have no police, subpena, law-enforcement powers, or internal-security functions." 50 U.S.C. § 403(d)(3). This directive was intended, at the very least, to prohibit the CIA from conducting secret investigations of United States citizens, in this country, who have no connection with the Agency.
The Agency has been given far-reaching authority to gather information and to conduct intelligence activities abroad. These vital functions are liberally financed and concern national security. It is generally accepted that the Agency, in both its reporting and operational functions, serves an essential role in the development and implementation of foreign policy. The Agency, of course, proceeds in secret. Many of its operations are covert, and since the stakes are high few are in a position to know or to question the manner by which it carries out its work. It has the power that flows from money and stealth. Congress was well aware such activities create a potential for abuse, and chose to limit the Agency's activities to intelligence gathering abroad. It was unwilling to make it a policeman at home, or to create a conflict between the CIA and the FBI.
The legislative history of the CIA enabling act is sketchy, but these concerns are abundantly clear. Congress wisely sought from the outset to make sure that when it released the CIA genie from the lamp, the Agency would be prevented from using its enormous resources and broad delegation of power to place United States citizens living at home under surveillance and scrutiny. It denied the Agency police or internal-security functions to obviate the possibility that overzealous representatives of the CIA might pry into the lives and thoughts of citizens whose conduct or words might seem unconventional or subversive. Thus, during floor debates in the House, for example, a member of the Committee which considered the legislation stated:
This Central Intelligence Agency is supposed to collect military intelligence abroad, but we want to be sure it cannot strike down into the lives of our own people here. So, we put in a provision that "the Agency shall have no police, subpena, law-enforcement powers, or internal-security functions."
93 Cong.Rec. 9444 (1947) (remarks of Congressman Judd).
Congress had a realistic fear of secret police that would move inward rather than outward, and assume prerogatives never intended. While the 80th Congress obviously, and for good reason, wished to protect America's security, it had no intention of making the mistake of creating an American "Gestapo." 5 As the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities ("Church Committee") recently reported, "By codifying the prohibition against police and internal security functions, Congress apparently felt that it had protected the American people from the possibility that the CIA might act in any way that would have an impact upon their rights." 6
In spite of this congressional awareness and insistence, the CIA hopes to find support for this type of investigation into a citizen's background by reference to 50 U.S.C. § 403(d)(3), which, while denying the CIA any internal security functions, also states ". . . the Director of Central Intelligence shall be responsible for protecting...
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